Hoy v. Kansas Turnpike Authority

• Decision Date: 24 January 1959
• Docket Number: No. 41144,41144
• Citation: 184 Kan. 70,334 P.2d 315
• Parties: George W. HOY and Ethel Hoy, Appellants, v. KANSAS TURNPIKE AUTHORITY, Appellee.
• Court: Kansas Supreme Court

Page 315

334 P.2d 315

184 Kan. 70

George W. HOY and Ethel Hoy, Appellants, v. KANSAS TURNPIKE AUTHORITY, Appellee.

No. 41144.

Supreme Court of Kansas.

Jan. 24, 1959.

Rehearing Denied March 11, 1959.

Syllabus by the Court

The Kansas Turnpike Authority commenced condemnation proceedings to acquire a portion of its right of way across plaintiffs' land which was devoted to general farming operations and the raising of livestock. Some 12 to 13 acres of the land taken for the right of way were underlaid with rock 12 to 18 feet thick. The land-owners, being dissatisfied with the award of the appraisers, appealed to the district court where the action to determine the amount due them was tried by a jury. Held, upon the trial of such action, as more fully stated in the opinion, it was error: (a) to refuse one of plaintiffs' witnesses the right to state on redirect examination why he did not consider two sales of land specifically inquired about on cross-examination; (b) to receive evidence from one of defendant's expert witnesses upon redirect examination that although he did not consider the trees, the buildings, the stone corral fences, and a well in placing his valuation upon the land taken, he did consider those elements in determining damage to the land not taken; (c) to refuse to withdraw from the consideration to the jury evidence that defendant's right of way fence was moved back granting plaintiffs access to a well located upon the land taken, and (d) to refuse to give two instructions requested by plaintiffs, except as requested instruction No. 1 is modified by this opinion.

Floyd A. Sloan, Topeka, argued the cause, and W. Glenn Hamilton, Eldon Sloan, and James W. Sloan, Topeka, were with him on the briefs for appellants.

Robert M. Cowager, Topeka, argued the cause, and Ernest J. Rice, Topeka, was with him on the briefs for appellee.

FATZER, Justice.

This eminent domain proceeding was commenced by the Kansas Turnpike Authority to acquire a portion of its right of way. The landowners, George and Ethel Hoy, appealed to the district court from the award of the appraisers. Following a trial by a jury, they were awarded $7,400 for the value of the land taken and damage to the land not taken, and judgment was entered in harmoney with the verdict. The Hoys have appealed from that judgment, the refusal of the district court to give requested instructions, and its order overruling their motion for a new trial.

The Hoys owned and occupied a 265-acre farm southwest of Topeka consisting of 112 to 120 acres suitable for cultivation, 130 acres of pasture and hay land, eight acres of rough timberland, and the remainder was utilized for the home, farmyard and improvements. In June, 1955, the Authority condemned a strip of land for right of way purposes 300 feet wide running diagonally across the farm in a northeasterly-southwesterly direction containing 14.62 acres. The right of way divided the farm into odd shaped fields and cut through the farmyard so that the south line of the right of way was only seven feet north of the barn and about 145 feet north of the house. There was a north-south county highway immediately west of the farm improvements, upon which an overpass over the turnpike was constructed necessitating a grade several hundred feet long, 20 feet high at the turnpike roadway, and 12 feet high immediately in front of the house, obstructing vision to the west and northwest. Some additional small tracts along the county highway were also condemned by the Authority to permit ingress and egress to and from the farm, bringing the total number of acres taken to 15.06.

Located upon the land taken were three trees, a second barn, hog house, cow shed, build-in stone wall self feeder, 1,010 feet of stone wall corrals averaging five feet in height and 28 inches wide at the bottom and 21 inches at the top, and a well which was the farm's main source of water. This well is especially valuable because it has an inexhaustible supply of water and is the only well that does not go dry in extended periods of drought. Attempts to locate other wells which would furnish an adequate supply of water have been unsuccessful.

To give the Hoys more room to get into and around the barn not taken, the right of way fence was moved 30 feet north of the south line of the right of way so that the well is 'outside' the fence and presently accessible to the Hoys, and the distance between the fence and the nearest point to the barn was increased to 37 feet. The Authority has not given the Hoys an easement or conveyed its right to the well thus assuring them of a permanent water supply, and it has the right to move its fence to the south line of the right of way at any time, cutting off access to the well and around the barn not taken.

Prior to the taking, the entrance to the farm from the county highway was down by the barn. As a result of the condemnation, the entrance was changed so that all hauling to and from the farm now passes close to the house. Previously, the corrals were north of the entrance and the lay of the land was such that drainage from the corrals was away from the improvements. After the taking, there was no place for stock corrals similar to those existing prior to the condemnation, and drainage from the farmyard was also changed. At the present time, traffic noise from the turnpike can be heard plainly in the house.

At the time the right of way was condemned the Hoys knew that about 12 or 13 acres of land taken was underlaid with rock 12 to 18 feet thick, which extended across and 1,250 feet along the right of way. The rock outcropped near the corrals and was a few feet under the surface elsewhere. The Authority contracted with the Weaver Construction Company to cut through the rock and clear it from the right of way. Weaver subcontracted the work and the roadbed was cut too deep, necessitating that it be refilled to grade level with loose rock. After construction was commenced, the Hoys leased rock on both sides of the right of way to the Weaver Construction Company and were paid $1,000 an acre for the rock taken. The number of acres leased is not disclosed. Rock removed from the right of way, as well as that taken from the Hoys' land, was used in the construction of the turnpike. The Hoys received no compensation from the Weaver Construction Company for rock removed from the right of way.

At the trial three real estate dealers, as expert witnesses, and three farmers living in the vicinity testified for the Hoys. Each stated he was familiar with the improvements on the land at the time it was taken and knew it was underlaid with rock. They testified that the fair market value of the land when taken was from $8,450 to $11,975, and the difference in value of the remaining land before and after the taking was from $9,467 to $15,550. Mr. Hoy testified that the market value of the land taken was $9,500, and that the market value of the remainder of the farm before the taking was $36,500, and immediately after was $23,000. Also, that he used the farm for general farming operations and the raising of hogs and cattle, and knew it was underlaid with rock. He further testified that at the time of the taking wheat was growing upon the land taken.

Three real estate dealers, as expert witnesses, testified for the Authority that the fair market value of the land taken was from $1,700 to $1,900, and the difference in value of the remainder before and after the taking was from $4,025 to $4,820. Upon cross-examination each testified that he did not include in his valuation of the land taken the trees, the stone corral fences, the buildings, the well, or the rock beneath the surface, but that at least a part of the improvements were considered in arriving at the damage to the land not taken.

The principal questions presented and argued are the elements which should be taken into consideration in determining the amount of the award. They arise on objections to evidence received, the exclusion of evidence offered, and the refusal of the court to give requested instructions. In discussing these questions appellants Hoy will hereafter be referred to as plaintiffs and the Authority as defendant.

Plaintiffs contend it was error for the court to sustain objections to questions asked one of their witnesses on redirect examination. The witness testified on direct examination to the value of the land taken and the value of the remainder before and after the taking. On cross-examination he stated he considered sales of comparable property in the vicinity but did not take into consideration two sales of land specifically inquired about. On redirect examination an objection was sustained to the question whether the two tracts of land inquired about upon cross-examination were, in his opinion, similar to the 15.06 acres acquired by the defendant. Plaintiffs moved to strike that part of the cross-examination relating to the two sales of land, which was refused. At the hearing of the motion for a new trial, the affidavit of the witness was presented in which he stated he would have answered the question 'no.' The questions on cross-examination assumed that the two tracts were sold at a given price and were proper to test the credibility of the witness. The question on redirect examination was an attempt to rehabilitate the witness and to establish why he did not consider the two sales of land inquired about. We think the question objected to was proper upon redirect examination (98 C.J.S. Witnesses § 419, pages 224, 225, and § 421, pages 228, 229) and the witness should have been permitted to answer. If the credibility of a witness has been attacked on cross-examination, questions may be asked on redirect examination which will explain or give reasons for the answers given on cross-examination. It is proper to inquire of a witness testifying to the value of land in condemnation proceedings, concerning sales of land in the vicinity...